STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Petitioner )

vs. ) CASE NO. 88-0501

)

VIRGINIA KING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled cause on April 20, 1988, at Tampa, Florida.

APPEARANCES

For Petitioner: Arthur R. Shell, Jr., Esquire

Florida Real Estate Commission

1. West Robinson Street Tallahassee, Florida 32301

   
   

   For Respondent: Virginia King, pro se

2. Ronele Drive Bradenton, Florida 33511

By Administrative Complaint filed December 18, 1987, the Department of Professional Regulation, Division of Real Estate, Petitioner, seeks to revoke, suspend or otherwise discipline the license of Virginia King, Respondent, as a real estate salesman. As grounds therefor, it is alleged that Respondent took a security deposit on a rental made payable to her, deposited it in her personal bank account and failed to return it to the potential renter when demand therefor was made. By these actions, Respondent is alleged to have operated as a broker while licensed as a salesman and of dishonest dealing in a business transaction.

At the hearing, Petitioner called three witnesses, Respondent testified in her own behalf and three exhibits were admitted into evidence. There is no real dispute regarding the facts.

FINDINGS OF FACT

1. At all times relevant hereto, Virginia King was registered with the Florida Real Estate Commission as a real estate salesperson. She has been so licensed for at least 15 years working for Tam Bay Realty.

   
   

2. Respondent manages the residential unit here involved for the owners to whom she has sold several properties in past years and who have been out of the

   country for an extended period. In renting the property the rent is paid to Respondent, deposited into her account from which various expenses associated with the rental of the property is paid, and she makes an accounting to the owners for all monies owed to them.

   
   

3. The dwelling in question was listed with Tam Bay Realty for sale with Respondent as listing agent, but she was also renting the property on behalf of the owner. To the Tam Bay For Sale sign on the property, Respondent attached a For Rent sign.

   
   

4. Richard D. and Linda Grey were looking for a rental and saw the For Rent sign on the property and called Tam Bay Realty where they were put in touch with Respondent who subsequently met the Greys at the residence. The Greys liked the property and gave Respondent a check for $100 as a deposit on the lease to be executed when the Grey's presented their first month's rent.

   
   

5. The residence needed some cleaning which Respondent agreed to have done if the Grey's would have the water turned on. Grey also wanted some trimming of hedges to which Respondent agreed. The Greys later met Respondent at the dwelling before the cleaning and trimming had been done. Grey contends that he did not have the water turned on because "that was the owner's responsibility," but the water was turned on and Respondent had the dwelling cleaned and the hedges trimmed for which she paid in excess of $100.

   
   

6. Before the time for occupancy arrived, the Greys encountered a delay in the closing on the home they were selling and called Respondent to say they no longer wanted to rent the house and demanded a return of their $100 deposit. Respondent, contending that Grey breached the agreement to rent the property, credited the $100 to the account of the owner (whose account was also charged for the cleaning and trimming), and refused to remit the deposit to Grey.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

8. Respondent is here charged with operating as a broker while registered as a salesman and with fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in a business transaction.

   
   

9. With respect to the charges of fraudulent conduct, these charges are predicated upon Respondent receiving funds from Grey, having a duty to return those funds to Grey and refusing to do so. Grey gave Respondent a deposit to hold the residence available for his occupancy on June 22, 1987. When the time for occupancy arrived, Grey had encountered a change in his circumstances (his house sale did not close as he had expected), and he unilaterally opted to cancel his lease. Respondent had incurred obligations on the part of the owners of the property in cleaning the house, trimming hedges, etc., and was fully prepared to have the residence ready for occupancy in accordance with the agreement reached between Respondent and the Greys. Under these circumstances, Grey was not entitled to a return of his deposit, and Respondent was not guilty of fraudulent conduct in refusing to return to Grey his deposit.

   
   

10. With respect to the charge of acting as a broker while registered as a salesman, it would appear that Respondent did so act. A broker is defined as a person who for another, "and for a compensation or valuable consideration

    directly or indirectly paid or promised . . . rents . . . any real property or interest in or concerning the same "

    
    

11. No evidence was presented that Respondent received any valuable consideration for acting on behalf of the owner of the property in agreeing to lease the property to Grey.

    
    

12. In a license disciplinary proceeding, Petitioner has the burden to prove by clear and convincing evidence the allegations. Ferris v. Turlington,

510 So.2d 292 (Fla. 1987). Petitioner has here failed to sustain that burden. It is

RECOMMENDED that all charges against Virginia King be dismissed. ENTERED this 16th day of May, 1988, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1988.

COPIES FURNISHED:

Arthur R. Shell, Jr., Esquire Florida Real Estate Commission

1. West Robinson Street Tallahassee, Florida 32301

   
   

   Virginia King, pro se

2. Ronele Drive Bradenton, Florida 33511

Darlene F. Keller Executive Director Division of Real Estate

400 West Robinson Street Orlando, Florida 32801

William O'Neil General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

FLORIDA REAL ESTATE COMMISSION

DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE,

Petitioner,

vs. Case No. 0156906

DOAH No. 88-0501

VIRGINIA KING,

Respondent.

/

FINAL ORDER

On June 21, 1988, the Florida Real Estate Commission heard this case to issue a Final Order. Hearing Officer K. N. Ayers of the Division of Administrative Hearings presided over a formal hearing on April 20, 1988. On May 16, 1988, he issued a Recommended Order, which is adopted by the Florida Real Estate Commission as to the Findings of Fact and Conclusions of Law, except as noted below. A copy of this Recommended Order is attached hereto as Exhibit A and made a Dart hereof.

Upon a complete review of the record, the Florida Real Estate Commission rejects the Hearing Officer's Finding of Fact #6 as not supported by competent, substantial evidence and adopts the Petitioner's Exceptions as they pertain to this Finding of Fact. The Hearing Officer's Conclusions of Law as excepted by the Petitioner are rejected, and the petitioner's Exceptions on the Conclusions of Law are accepted. The Petitioner's Exceptions are attached hereto as Exhibit B and made a part hereof.

The argument set forth in Petitioner's Exceptions is adopted by the Commission as sufficient reason for rejecting the Hearing Officer's recommended penalty. Therefore, the Commission ORDERS that the Respondent pay an administrative fine of $500.00.

This Order shall be effective 30 days from date of filing with the Clerk of the Department of Professional Regulation. However, any party affected by this Order has the right to seek judicial review, pursuant to 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure.

Within 30 days of the filing date of this Order, review proceedings may be instituted by filing a Notice of Appeal with the Clerk of the Department of Professional Regulation at 400 West Robinson Street, Suite 309, Orlando, Florida 32801. At the same time, a copy of the Notice of Appeal, with applicable filing fees, must be filed with the appropriate District Court of Appeal.

DONE AND ORDERED this 21st day of June 1988 in Orlando, Florida.

Director

Division of Real Estate

I HEREBY CERTIFY that a true copy of the foregoing was sent by U.S. Mail to: Virginia King, 401 Ronele Drive, Bradenton, Fl 33511; to Hearing Officer K.

N. Ayers, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Fl 32301; and to Arthur Shell Jr., Esq., DPR, P O Box 1900, Orlando, Fl 32802, this 5th day of July 1988.

Darlene F. Keller

LC:pep Director

Docket for Case No: 88-000501

Orders for Case No: 88-000501